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Decisions of the Superior Courts of New South Wales, 1788-1899

Terry v Moran (1835) NSW Sel Cas (Dowling) 478; [1835] NSWSupC 35

fieri facias, priority - debt recovery, priority of writs - execution of judgments, priority

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, April 1835

Source: Dowling, Select Cases, Vol. 4, Archives Office of New South Wales, 2/3463

[p.1]

[1835

April]

[Where the Sheriff seized under a fi fa at the writ of A, & by a subsequent writ issued after the first had expired, at the suit of B he seized land pointed out to him by the plaintiff, but not known of at the time the first writ was executed.

Held that the proceeds of the second writ could not be applied in satisfaction of the first, for that writ was then functus officio.]

In Banco

CoramForbes CJ

Dowling J

Burton J

 

Terry v Moran

Reid v Moran

The following case was agreed upon by the parties for the opinion of the Court:-

The writ of fieri facias in the case of Terry v Moran issued on the 4th March 1833 returnable 4th April following.  Under that writ certain property was seized which was not sold until the 10th October following and never as yet returned by the Sheriff.  On the 29th August 1833 the writ in Reid v Moran issued returnable 29th September following.  Under the latter writ the plf. pointed out to the Sheriff then acres of land belonging to Deft and which it appears belonged to him before and at the time the first writ was issued but which was not pointed out to the Sheriff or known before the first writ was returnable.  The question now is [p.2] whether the first writ bound these ten acres from the delivery of the first writ to the sheriff or whether it was necessary to levy on the land in order to bind it against subsequent writs.  And whether the money legalized on the sale of the said ten acres which were levied under the second writ should be applied towards that writ or towards the first.

The Court having advised upon the case,

Burton J. now delivered the Judgment of the whole Court:-

We are of opinion that upon the true construction of the latter part of the 4th Section of Stat. 54 G. 3. C. 15. the provisions of the Common law altered by the 29th Car. 2. c. 3. s. 16. so far as to the priority of writs of execution upon the "property of the goods of the party against whom such writs of execution are sued forth", are applicable in this Colony to writs of execution against lands, and consequently, that of two such writs delivered to the Sheriff, that which is first delivered is entitled to the priority, [p.3] so that if he should apply the proceeds to the second writ, and return null a bona to the first he would be liable to an action at the suit of the plf in writ first delivered for a false return.  But this must be understood of two valid and existing writswhich he has power to execute, being in his office at the same time, for if the first writ becomesfunctus officio by being returned or by the time of its becoming returnable having expired before the second writ is lodged, there is then but one valid subsisting writ in his hands and the property whether in goods subsequently seized, or in lands under the statute, must according to the rule respecting goods be bound by that writ.  An expired writ is no writ and cannot be acted upon except to sell goods or property seized under it, before its return day.  An arrest after the writ is returnable is void; Loveridge v Plaistow, (2 H.B. 29 2 Saund 101.i.  2 Ld. Rayn 1449) and as an expired writ would be inoperative upon goods [p.4] not seized, before its expiration, so we are of opinion it is in this Colony inoperative upon lands of which the sheriff had no notice before its expiration, and it being stated in the case presented to the court, that the writ in TerryMoran had been executed respecting certain property seized under it, and was returnable long before the writ in Reid v Moran was delivered to the sheriff, and that the first notice he had of the land in question was its being pointed out to him by the plf in the latter action and that the said land was levied upon under the second writ, we are of opinion that the money realized upon the sale of that land should be applied towards that writ.  And we consider the principle upon which the case of Thompkins & Thompkins wife v Smith (Vol. 105.p.135) was decided in the last term to be applicable to this case.  The only difference between them is, that there the real [p.5] property in question had been levied upon under an elder writ but abandoned by the plf on some doubt respecting the defts title to the land and that writ became functus officio and was returned nulla bona[1 ] before the delivery of two other writs to the sheriff upon other judgments under which the same property was afterwards sold & the court held that the proceeds were properly applicable to the first writ.

Judgment for the Plf

in Reid v Moran

Keith for Terry & Sheehy for Reid

 

Notes

[1 ] Literally, "no goods."  A return by the sheriff stating that there was no property to seize.

Published by the Division of Law, Macquarie University